ORIGINAL STANDARD

Discussions about electronic discovery have traditionally focused on civil matters because civil cases have historically been more document intensive and thus that discovery process has been more richly nuanced. In addition, when criminal matters do have relevant documents, the discovery standard has been the so-called Brady rule, named after the landmark Supreme Court ruling Brady v. Maryland (373 U.S. 83 (1963) which held that prosecutors are only required to share evidence deemed exculpatory of the defendant.

In 2012, eDiscovery expert Craig Ball wrote in a column called Thoughtful Guidelines for E-Discovery in Criminal Cases “… apart from meeting Brady obligations, I think most lawyers regard criminal law as an area where there is no discovery, let alone this new-fangled e-discovery.” More recently, a 2019 article in the New York Times mentioned that defense lawyers often called the Brady approach the “blindfold” law because it kept them in the dark and forced them into plea bargains without any knowledge of precisely what documents the prosecutors had in their possession. 

But that standard is changing.

CHANGING STANDARD

In 2005, Judge Marcia Pechman of the Western District of Washington had just concluded a white-collar criminal case brought by the government against Kevin Lawrence and his company, Znetix.  That case had nearly 1.5 million scanned electronic documents, at the time an extremely high document volume which caused both logistical and budgetary problems for the Court. 

Judge Pechman decided to convene a group of attorneys from the U. S. Defenders Office and the US Attorney in Seattle to discuss more efficient and cost-effective ways to deal with electronic documents in large cases.  This group included Russ Aoki, then a Criminal Justice Act (CJA) Panel attorney and now Coordinating Defense Attorney in complex matters for the Defenders, who had represented Mr. Lawrence.

I was privileged to be the only non-case attorney in the group, which went on to create a set of best practices policies for large document cases and wiretap surveillance evidence. Those policies were in effect in the Seattle federal court as a local rule for many years before other similar groups began meeting around the country. The eventual result of those meetings was a protocol released in 2012 by a Joint Technology Working Group of federal criminal practitioners created by the Director of the Administrative Office of the United States Courts (the supervising agency of the U.S. Defenders Office) and the U.S. Attorney General.

Then last year came the culmination of several years of meetings and discussions on this subject in which Atty Aoki was actively involved: an actual rule change.

Effective Dec 1, 2019, Federal Rule of Evidence 16.1 Pretrial Discovery Conference; Request for Court Action was changed to read:

(a) Discovery Conference. No later than 14 days after the arraignment, the attorney for the government and the defendant’s attorney must confer and try to agree on a timetable and procedures for pretrial disclosure under Rule 16.

(b) Request for Court Action. After the discovery conference, one or both parties may ask the court to determine or modify the time, place, manner, or other aspects of disclosure to facilitate preparation for trial.

Additionally, the note to the new rule references the 2012 Joint ESI Protocol, the first time that protocol has been referenced in a rule.  At roughly the same time, the Western District of Washington local criminal rules were amended to also reference the Joint Protocol and specifically use the Meet & Confer task checklist from that protocol. This was the first time either the ESI Protocol is referenced and the checklist used in a local rule. As Attorney Aoki told me, “We know because we looked at every local rule in all 94 jurisdictions.”

At the same time, many states are beginning to undertake similar changes to criminal discovery rules. Foremost in that movement has been New York which passed changes which went into effect this month requiring all prosecutorial material to be shared early in the case. For more on the New York changes see this article.

DRIVERS OF CHANGE

What is driving these changes? More than 90 percent of documents created today are generated in electronic format, so data size is exploding. At the same time, the diversity of data types continues to increase as 88 percent of the US population uses the Internet every day and 91 percent of adults use social media regularly.

Social media, mobile device content and cloud storage content are all now routinely part of the definition of relevant ESI.  See Social Media Evidence in Criminal Proceedings: An Uncertain Frontier from Georgetown Law here as well as a recent article in California Lawyer by Atty. Robert Hill, an associate at Eisner Gorin LLP, a boutique criminal defense firm in Los Angeles.

And even more exotic types of ESI loom in the future of litigation.  In a November 2019 article in Law.com, Judge Andrew Peck (Ret.), of counsel at DLA Piper, noted that  “There are already news reports of Fitbits and pacemakers being looked at in criminal cases to show that the digital data contradicts the defendant’s story of what happened.”  The same article mentions a conversation with Andrew Hessel, president of Humane Genomics, a seed stage company that makes cancer-fighting viruses, in which he discusses data definition of genomic material and the fact that viruses can now be defined so precisely as to allow printing of their data “maps”.

EXCEPTION TO NEW STANDARD

I should note, however, the exception that courts have carved out for material on cell phones. In Riley v. California, 134 S. Ct. 2473 (2014), the US Supreme Court unanimously ruled that police may not search the cell phones of criminal suspects upon arrest without a warrant. In Carpenter v U.S, No. 16-402, 585 U.S. (2018), the court held in a 5-4 decision that accessing historical records containing the physical locations of cellphones without a search warrant violates the Fourth Amendment to the United States Constitution.

Both opinions were authored by Chief Justice Roberts, and both hold that that smartphones and other electronic devices are not in the same category as wallets, briefcases, and vehicles which are subject to a limited initial examination upon arrest. Rather, said Chief Justice Roberts in the Riley opinion, cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” 

He went on to note that cellphones “are based on technology nearly inconceivable just a few decades ago” when the Court had upheld the search of an arrestee’s pack of cigarettes. Today, he wrote, citizens today have a reasonable expectation of privacy for information on their cell phones noting “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Another exception to these developing standards is seizures at the US border.  Entry into the US has long been a separate category as many observers argue the US Constitution cannot apply to non-citizens who are still outside the US.  That discussion is beyond the scope of this article but a good starting point is a blog post I did on the subject for CloudNine.  

CONCLUSION

In addition to pointing out the clear differences between civil and criminal discovery standards, the secondary point of this article is to note that while criminal defense attorneys have a duty to preserve and produce electronically stored information (ESI) just as their civil counterparts do, that most state and federal criminal discovery is statutory, or rule-based.  But constitutional concepts apply in both arenas in order to ensure a fair trial and due process, including the right against self-incrimination and against unreasonable searches and seizures.

For a very good overview of all the issues involved in criminal eDiscovery practice can be found in Criminal Ediscovery: A Pocket Guide for Judges, a 2015 publication of the  Federal Judicial Center. It focuses on a number of issues and in greater detail than we can cover in this post and is an excellent resource. It is authored by Sean Broderick, National Litigation Support Administrator, Administrative Office of the U.S. Courts, Defender Services Office; Donna Lee Elm, Federal Defender Middle District of Florida; Andrew Goldsmith, Associate Deputy Attorney General & National Criminal Discovery Coordinator U.S. Department of Justice; John Haried, Co-Chair, eDiscovery Working Group — EOUSA U.S. Department of Justice and Kirian Raj, Senior Counsel to the Deputy Attorney General U.S. Department of Justice. I highly recommend it.

Great post this week by Doug Austin on his eDiscovery Today blog. Called Setting Realistic Expectations About AI in eDiscovery: eDiscovery Best Practices, it covered a new article in ILTA’s Peer to Peer Magazine entitle The Humans Stay in the Picture: 4 Realities of AI in Modern eDiscovery. The author of that article, Dr. Gina Taranto of ProSearch, made four keys points about AI but one in particlualr caught my eye.

Her third bullet poitn was called “Humans Stay In the Picture” and basically said that no matter how sophisticated the technology, you still need planning, training, QC and analysis and that “Humans are required for all of that.”

That brought to my mind an article I wrote in 2020 called “IS AI THE FIGHT CLUB OF LEGAL TECHNOLOGY?” I’ve reposted it below and even though some of the surveys and stats are out of date, the emphasis is still the same as what Dr. Taranto wrote. … let’s keep the attorney in AI.

Artificial Intelligence has become the biggest buzz word in legal technology since, well the last biggest buzzword. ECA, TAR, Blockchain, Analytics, Big Data, Collaboration, Disruption, Innovation.

Every 6 months we have a new “big thing” and right now it’s AI. Articles are constantly harping on the rise of the machines that AI portends. Gartner includes AI on their list of the top 10 strategic
technology trends of 2019 and even estimates that 80% of emerging technologies will be built on a foundation of artificial intelligence by

In a Law Technology Today article , Andrew Ng, Co-Founder of Coursera and Adjunct Professor of Computer Science at Stanford University, says AI is the new electricity. “Just as electricity transformed
almost everything 100 years ago,” he explains, “today I actually have a hard time thinking of an industry that I don’t think AI will transform in the next several years.”

And in that same article, Ajith Samuel technologist and co-founder of eDiscovery company Exterro, says that using AI will become “frictionless,” meaning that it will be ever more seamlessly integrated into the e-discovery process. He feels that AI will move out of the review phase, earlier in the EDRM, helping legal teams get to the facts of the matter faster, cheaper, and smarter than ever before. Ultimately AI will play an increasing role in orchestrating the e-discovery process, streamlining the process and improving efficiency.

And let’s not forget the 2015 survey by Altman Weil of 320 firms with at least 50 lawyers on staff which found that 35 percent of the leaders at those firms (responding anonymously) believed some form of AI would replace first-year associates in the coming decade. 20 percent of those same respondents said second- and third-year attorneys could also be replaced by technology over the same period and half said that paralegals could be killed off by computers. (See graphic below)

But if we are to believe the latest ILTA survey, that simply isn’t happening. The annual survey of the International Legal Technology Association was released on Nov 5, 2020, and reported answers from 537
firms, representing more than 116,000 attorneys and 240,000 total users. With regards to IA, it finds that just over 50% of respondents are not “…presently pursuing any IA option” and only 25% are actively
researching an AI option. Respondents with active pilot projects or study groups were 7% and 4% respectively with only 10% reporting an active AI tool deployment. (See graphic here )

So, what is going on here? We hear lots of talk about AI but not much actual usage. Part of the problem is, I believe, definitional and actual definitions of AI are in short supply.

One recent article broke out AI into 6 categories
 Due diligence – Litigators perform due diligence with the help of AI tools to uncover background information. We’ve decided to include contract review, legal research and electronic discovery in this section.
 Prediction technology – An AI software generates results that forecast litigation outcome.
 Legal analytics – Lawyers can use data points from past case law, win/loss rates and a judge’s history to be used for trends and patterns.
 Document automation – Law firms use software templates to create filled out documents based on data input.
 Intellectual property – AI tools guide lawyers in analyzing large IP portfolios and drawing insights from the content.
 Electronic billing – Lawyers’ billable hours are computed automatically. (See )

And an actual standard (or standards) for AI has been slow to develop with the first just recently published by the Organization for Economic Co-operation and Development (OECD) which adopted
and published its “Principles on AI” on the Law and AI blog.

But in all that discussion, where are the AI use propositions for eDiscovery? Well, the problem there is that eDiscovery vendors are traditionally close mouthed about their systems. And since a primary
feature of AI as mentioned by Ajith Samuel above is its “frictionless” adoption, then AI implementation is hidden by both design and practice.

Legal technology has become more Fight Club than computer lab and AI has become the worst example of that proposition.

I’ve written before that all this emphasis on new technology reminds me of my old friend, the late Browning Marean. He was a great fan of the writings of Ray Kurzweil, the technologist and futurist who wrote The Age of The Intelligent Machine. Browning’s favorite Kurzweil was “The Singularity Is Near: When Humans Transcend Biology”, which posited that technological advances would irreversibly transform people as they augment their minds and bodies with genetic alterations, nanotechnology, and artificial intelligence.

I however am more mindful of another tenet of the Singularity, that exponential increase in technologies will lead to a point where progress is so rapid it outstrips humans’ ability to comprehend it. To me we are
losing sight of the proposition that people are slow and computers fast, but people are smart and computers are dumb.

And in fact, some of today’s greatest minds in technology fell the same way Stephen Hawking has stated, in an op-ed which appeared in The Independent in 2014, “Success in creating AI would be the biggest
event in human history. Unfortunately, it might also be the last, unless we learn how to avoid the risks.” His fear? As posted in a separate interview with BBC, it was simply stated: “humans, limited by slow
biological evolution, couldn’t compete and would be superseded by A.I.”

Hawking recently joined Elon Musk, Steve Wozniak, and hundreds of others in issuing a letter unveiled at the International Joint Conference Buenos Aires, Argentina warning that artificial intelligence can
potentially be more dangerous than nuclear weapons. Even Bill Gates has expressed concerns and during a Q&A session on Reddit in January 2015, said “I am in the camp that is concerned about super intelligence. First, the machines will do a lot of jobs for us and not be super intelligent. That should be positive if we manage it well. A few decades after that though the intelligence is strong enough to be a concern. I agree with Elon Musk and some others on this and don’t understand why some people are not more concerned.”

Sound far-fetched? Well then, consider it from our perspective as attorneys. What is the ethical dilemma of bestowing legal responsibilities on robots? Does not all this talk of AI undermine our ethical duties to manage our client’s matters if we don’t really understand how these programs work?

As far back as 2013, Peter Geraghty (Director of the ETHICSearch, ABA Center for Professional Responsibility) and Susan J. Michmerhuizen (ETHICSearch Research Counsel) wrote an article for Your ABA Enews called “Duty to Supervise Nonlawyers: Ignorance is Not Bliss”. Although the article focused on issues with paralegals and support staff, I would suggest that computers also qualify as non-lawyers and the concerns mentioned in the article should apply to them and the technical experts who use them as well.

This issue arises constantly when vendors run computer searches of documents and then produce directly to opposing counsel. The non-supervised release of privileged material can be an enormous problem
for a firm, so much so that Geraghty and Michmerhuizen noted an excerpt from Comment [3] to Rule 5.3 which states:

… Nonlawyers Outside the Firm
[3]A lawyer may use nonlawyers outside the firm to assist the lawyer in
rendering legal services to the client. Examples include the retention of
an investigative or paraprofessional service, hiring a document
management company to create and maintain a database for complex
litigation, sending client documents to a third party for printing or
scanning, and using an Internet-based service to store client
information. When using such services outside the firm, a lawyer must
make reasonable efforts to ensure that the services are provided in a
manner that is compatible with the lawyer’s professional obligations.

Keep this in mind when retaining a technical expert or using software to search and produce. Do you really understand what is going on? How much work being done by computers are you actively supervising in a knowledgeable manner? In these days of a duty of technical competence, attorneys cannot simply delegate to others, even their clients, the responsibility of understanding technology. I would suggest that blindly relying on AI or other computer intelligence to make decisions does not rise to that necessary level of understanding.

Always remember that technology is a tool and humans use tools not vice versa. The ultimate decision-making about what tool to use and how to use it resides with you, the attorney. As I have said before, we
need to keep the attorney in AI.

It’s not enough to be aware of AI, we have to understand AI. As that great technologist Elvis Aaron Presley once said, “A little less conversation, a little more action please.”